Weaker Than "He Said, She Said": Prosecutor Sends Memo to Judiciary Committee

Rachel Mitchell, who stood in for GOP Senators during Thursday’s hearing on Brett Kavanaugh, has delivered her final assessment to the committee.

Mitchell, who questioned Dr. Christine Blasey Ford during the first half of the hearing, detailed the issues a prosecutor would have in prosecuting the case. Her final assessment makes it clear that the case would likely never be won in a court of law, much less in front of a bitterly-divided Senate committee.


The memo is, as she says in the opening, an independent assessment of the allegations based on the testimony of Ford and her own experience.

Mitchell’s 25 years of experience in prosecuting sex crimes do provide her an insight few others would have into the matter, and they are worth reviewing. Her key takeaways from the hearing? There’s no way you could get a conviction from this.

As Tapper points out in his tweet, one of the most important quotes can be found at the top of the second page: “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that.”

Dr. Ford identified other witnesses to the event, and those witnesses either refuted or failed to corroborate them. For the reasons listed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.


The reasons include Ford’s “inconsistent account of when the alleged assault happened,” her struggle to “identify Judge Kavanaugh as the assailant by name,” the lack of memory of the night the alleged assault took place, and other key factors.

Mitchell’s report will undoubtedly incense Ford’s supporters, but it does not dispute the claim that an assault took place. Like Kavanaugh, Mitchell does not dismiss that the assault took place. Instead, Mitchell’s assessment is simply that there is not enough evidence to suggest it took place as Ford described.

One of the last points Mitchell makes is that the actions of congressional Democrats and Ford’s attorney likely “affected Dr. Ford’s account.” The implication here seems to be that she could have been coached into believing it was Kavanaugh, rather than remembering herself that it was him.

Mitchell’s memo isn’t going to change any minds. That much is certain. But, it does provide a legal analysis from someone who has worked on cases like this for decades, which is not necessarily something we’ve gotten a lot of since this whole thing started.


Whatever you feel about Ford, Kavanaugh, or even Mitchell, the fact is that this week is going to be an emotionally bitter one in Washington D.C., and no one knows where we’re likely to end up when the dust settles.


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